Litigating California Wage & Hour and Labor Code Class Actions

party who seeks the same relief, principles of equity, “[p]ublic policy and the
interest of litigants alike require that there be an end to litigation.” 411
The plaintiffs’ bar has been unwilling to accept the notion that one lawyer losing class
certification means that no other lawyer can try to get a class certified against that
employer. Plaintiffs’ counsel were aided in this regard when, in Bufil v. Dollar Financial, 412
the court of appeal held that collateral estoppel did not preclude certification of meal and
rest period claims for a sub-class of a broader proposed class for which certification had
previously been denied. Previously, in Chin v. Dollar Financial Group, 413 the court had
denied class certification of meal and rest break claims for clerks working alone in the
defendant’s check-cashing stores. In the middle of the class period, the defendant adopted
a policy of requesting that the clerks execute an on-duty meal period agreement, which the
plaintiffs contended they were forced to sign. The Chin court held that the question of
whether each individual clerk was pressured to sign the meal period agreement was an
individualized inquiry not suitable for class treatment. Furthermore, the court found that,
prior to the institution of the meal period agreement, defendant did not have a uniform meal
period policy, therefore requiring individualized inquiry as to whether each class member
was denied meal breaks during this time.
The court of appeal in Bufil held that this previous denial of certification did not create a res
judicata bar to certification of the class proposed by Bufil because both the proposed class
and the rationale for certification were different. The class in Bufil was a smaller subset of
the class alleged in Chin, including only clerks who worked for the defendant after the
institution of the meal period agreement. Furthermore, Bufil did not allege that the clerks
had been forced to sign the meal period agreements, which was one of the individualized
inquiries that had doomed plaintiffs’ claims in Chin. Rather, Bufil contended that the
employees did not work in a situation where an on-duty meal period would be permissible
even with the consent of the employees, which was a legal question that could be decided
on a class-wide basis.
Accordingly, Bufil can be harmonized with Alvarez as addressing a case where the plaintiff
truly is seeking certification of a different class using a different theory of collective proof.
Alvarez should still apply in a situation where the second action seeks certification of the
same class or seeks certification of a subgroup of the class alleging the same theory to
support class certification. 414 For example, one could not relitigate class certification simply
411
412
413
414
Id. at 1240.
162 Cal. App. 4th 1193 (2008).
2006 WL 1351491 (unpublished, unavailable on LEXIS).
See also Johnson v. GlaxoSmithKline, Inc., 166 Cal. App. 4th 1497, 1513-15 (2008) (reversing trial court’s application
of Alvarez collateral estoppel where enactment of Prop 64 after first court denied certification ran counter to the
rationale the first court had given for denying class certification; also considering (without deciding) whether Alvarez
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 91